The New Coercion Rule and Whistleblower Protection

1. The New Coercion Rule and Whistleblower Protection Gary Petty National Private Truck Council Gary Petty President & CEO National Private Truck Council

2. Meet Your Presenters Gary Petty President & CEO National Private Truck Council Tom Bray Senior Transportation Management Editor J. J. Keller & Associates Tom Moore, CTP Senior Vice President National Private Truck Council Mike Schwersenska, CTP Director of Transportation Brakebush Transportation

3. Coercion and Harassment Tom BrayJ. J. Keller & Associates, Inc. Thomas Bray Sr. Editor, Transportation Management J. J. Keller & Associates, Inc.

4. Coercion Rule • Prohibits coercion of a driver • Went into effect 1/29/16 • Provides a definition of coercion • A threat by a motor carrier, shipper, receiver, or transportation intermediary, or their respective agents, officers or representatives, to withhold business, employment or work opportunities from, or to take or permit any adverse employment action against, a driver in order to induce the driver to operate a commercial motor vehicle under conditions which the driver stated would require him or her to violate one or more of the regulations, which the driver identified at least generally Tom BrayJ. J. Keller & Associates, Inc.

5. Coercion Rule • Key points: • Applies to carriers, shippers, receivers, and brokers, AND their agents • Dispatchers and maintenance supervisors are “agents!” • The “threat” once the other party is told of the situation is what makes it coercion Tom BrayJ. J. Keller & Associates, Inc.

6. Coercion Rule • What is NOT coercion • Reassigning a load to a driver with hours and/or a good vehicle is NOT coercion, provided there was no threat first • A shipper choosing to use a different carrier that promises to provide drivers with hours and good equipment is not coercion • Asking a driver to leave private property is NOT coercion Tom BrayJ. J. Keller & Associates, Inc.

7. Coercion Rule • The rule also… • Provides procedures for drivers to report incidents of coercion • Established “rules of practice” FMCSA must follow in response to allegations of coercion • FMCSA must investigate all “non-frivolous” complaints of coercion Tom BrayJ. J. Keller & Associates, Inc.

8. Coercion Rule • Historical problem areas: • Ill or fatigued • Hours-of-service • Vehicle defects Tom BrayJ. J. Keller & Associates, Inc.

9. Harassment Prohibited • Different rule found at §390.36 (part of ELD rule) • Harassment defined: • Using the ELD system to harass a driver into driving when ill or fatigued or when driving would violate HOS regulations Tom BrayJ. J. Keller & Associates, Inc.

10. Harassment Prohibited • Using the ELD system to harass a driver into driving when ill or fatigued or when driving would violate HOS regulations Tom BrayJ. J. Keller & Associates, Inc.

11. Harassment Prohibited • Harassment protections: • Driver must have access to all records in the ELD system • System must “mute” during sleeper periods • Specific complaint and investigation procedures • 90 days to file complaint • FMCSA must investigate if complaint determined to be non-frivolous Tom BrayJ. J. Keller & Associates, Inc.

12. Don’t Forget! • Be aware: STAA whistleblower protections are still out there! • These apply if you take action against a driver for: • Reporting a safety concern to you • Reporting a safety concern to a safety agency (DOT or OSHA) • Refusing to operate in an unsafe equipment or in violation of the safety regulations after reporting it to you • Providing information to a safety agency during an investigation • Penalties approaching $1,000,000 in some cases Tom BrayJ. J. Keller & Associates, Inc.

13. Tom MooreNational Private Truck Council Beyond Compliance Tom Moore CTP Sr. Vice President National Private Truck Council

14. The Challenge • Most of our members report that coercion, harassment, whistleblower rules are a non-issue • Obviously want to ensure they don't pressure someone to go out when they shouldn't • But fleets also have a business to run and need to manage patterns of behavior • Balancing the concern around fit for duty / coercion with attendance policies • Do it right! Tom MooreNational Private Truck Council

15. The Solution • Understand the regulations • Basic premise is that someone is trying to tell you something is wrong • Develop good hiring practices • Enhance training • Upgrade management disciplines • Improve communications processes • Embrace technology/data management • Establish good disciplinary policies Tom MooreNational Private Truck Council

16. High Hiring Standards • Make sure you conduct probing, situationally based interviewing • Ensure top-notch background searches • Follow-through with peerless onboarding Tom MooreNational Private Truck Council

17. Comprehensive Training • From the outset, ensure transparency in terms of goals, expectations • Everyone must understand the policy • Create transparency Tom MooreNational Private Truck Council

18. Management Discipline • Educate, educate, educate • Take steps to correct the situation if the driver or other employee is correct, or • If the concern is unfounded, discuss the situation with the driver or employee and explain why the activity is safe and/or legal. Tom MooreNational Private Truck Council

19. Pro-Active Communications • Communicate early and often • Drivers need to understand clearly what their role is and how the company views them • Underscore that commitment often • Listen and take action Tom MooreNational Private Truck Council

20. Technology / Good Data Management • Technology provides enhanced visibility • Use it to ensure safe and efficient operations • Keep in mind: If you don’t measure it, you can’t manage it and you won’t improve it. • Make sure employees/drivers are part of the process • Journey to create a culture of safety Tom MooreNational Private Truck Council

21. Consistent and Effective Discipline • Don’t shoot the messenger • Document effectively • Progressive discipline • The complaint isn’t the problem, it’s how the carrier handles it! • The correct answer is not, “we punish the driver or employee” or worse, “we get rid of the problem” (the driver or employee)! Tom MooreNational Private Truck Council

22. Brakebush Brothers • Westfield, WI • Irving, TX • Wells, MN Mike Schwersenska Brakebush Transportation

23. Our Fleet • 34 OTR Trucks (Operating Nationwide) • 2 Local Trucks in TX • 85 Reefer Trailers • Outbound product at -5*and 28* • 2015- 2,983,321 Miles • 65,956,061 # of Chicken Delivered • 112,536,881 # Managed Mike Schwersenska Brakebush Transportation

24. Coercion • The rule states that no one may threaten a driver with future employment or business action in an attempt to get the driver to violate the safety regulations. • No one • Carrier • Shipper • Receiver • Broker • Agents Mike Schwersenska Brakebush Transportation

25. Our Take • Coercion shouldn’t have been in our operation prior to the rule. • Mean what you say and say what you mean. • Work on our “Safety First” philosophy throughout the company. • TRAIN TRAIN TRAIN……. Mike Schwersenska Brakebush Transportation

26. HOS Training • Hours of Service may have been just for the Private Fleet Team. • Now we train: • Receiving • Shipping • Purchasing • Sales • Logistics • Anyone that may speak to a driver. Mike Schwersenska Brakebush Transportation

27. Vehicle Defects • Maintenance supervisor was trained and handled all repairs. • Now: • All Operations • Management • Fleet Technicians • Communication of pending maintenance issues via email so everyone is on the same page. Mike Schwersenska Brakebush Transportation

28. Operations • Most deal with a constant back and forth with operations/safety & maintenance. • Safety First eliminates some of the disagreements. • Everyone cross trains on each department. • Work with relay options on JIT loads • Drivers must also be trained. • What is and what is not coercion. • #1-NOT COERCION • Being kicked off a shippers property when out of hours. Mike Schwersenska Brakebush Transportation

29. Technology • Brakebush Transportation has had ELD’s since 09. • Offers a new level of visibility • Available Hours • Started day (14 HR rule) • Restart • Assist Operations with load planning. • Will driver have time to make pick • Will driver need a relay • Etc Mike Schwersenska Brakebush Transportation

30. Load Planning • Dispatching • Outbound loads are multi stop (driver unload) • Drivers are dispatched on a first in first out plan. • Every attempt is made to keep a driver in a lane they’re comfortable with. • Most will know reload prior to being empty. • Our backhaul dispatchers communicate the driver HOS prior to taking any load. Mike Schwersenska Brakebush Transportation

31. Communication • One of the difficult issues facing most fleets today. • Accurate information getting to drivers from the company. • Social Media • XM Radio • Other Drivers • New Operations Folks Mike Schwersenska Brakebush Transportation

32. Communications (cont.) • Start with a great interview and explain the good and bad of working at your company. • Driver orientation- let the drivers know you have an open door policy and YOU want to know about any safety concerns they may have. • Take action and follow through! • Monthly news letter of conference call. Mike Schwersenska Brakebush Transportation